[Special Marriage Act] Youngsters Largely Employed Abroad, 30 Days Mandatory Residence & Subsequent Waiting Period May Need Relook: Kerala HC

A Petition has been recently moved before the Kerala High Court challenging the provision of the Special Marriage Act, to the extent that it mandates a waiting period of 30 days after submission of the notice of intended marriage. 

The Writ Petition was filed seeking a declaration that the mandatory waiting period is unconstitutional or a declaration that the 30 days period after submission of a notice of intended marriage mentioned in Section 6 and all consequential provisions under the Act are only directory and cannot be insisted upon.

Justice V G Arun noting that the matter requires detailed consideration, observed that,

A lot of changes and liberalisation has taken place even in our customs and practices. Yet another aspect is that a large number of youngsters are employed abroad. Such people come back to their native place only on short vacations and instances are many where the marriage is conducted during the short holidays. The Special Marriage Act requires one of the intending spouses to have resided within the territorial limits of the jurisdictional Marriage Officer for at least 30 days before submitting the notice of intended marriage. Thereafter, the intending spouses have to wait for another 30 days to solemnise the marriage. Whether this waiting period is essential in view of the revolutionary changes in the information technology sector and changes in the social set up itself are matters that should engage the attention of the law makers.

The petition has been moved by a couple aggrieved by the refusal to solemnise their marriage without the 30 days waiting period as mandated under the provision of the Special Marriage Act, 1954. The first petitioner is employed in Oman and it would only be possible for the second petitioner, who resides in Italy, to go along with the first petitioner after securing a visa only if the marriage was solemnised on or before January 13. The petitioners approached the Court since that was not possible because of the waiting period of 30 days after submission of the notice of intended marriage as mandated by the provision. 

The Counsel appearing for the Petitioners, Advocate K. M. Firoz, sought for an interim order contending that in the absence of a direction to solemnise the marriage, without insisting on the 30 days period, the writ petition will be rendered infructuous.

The Counsel contended that in view of the vast change in the social milieu from 1954 till date, the Act has to be interpreted progressively. The Counsel made reference to a Division Bench decision of the Allahabad High Court in which the court had held that notice under Section 5 of the Act to be optional and granted liberty to the parties to make a request in writing to the Marriage Officer to publish or not to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act. It was further observed by the Division Bench that if the parties do not make a request for publication of notice in writing while giving notice under Section 5 of the Act, the Marriage Officer shall not publish any such notice or entertain objections to the intended marriage and shall proceed with solemnisation of marriage. While thus proceeding, the Marriage Officer can verify the identification, age and valid consent of the parties and their competence to marry under the Act.

..."progressive approach is adopted by the Apex Court also, by relaxing the six months waiting period after submission of joint petition under Section 13 B(2) of the Hindu Marriage Act, 1955 and of the one year waiting period between marriage and submission of divorce petition", the Counsel argued, adding that with the advancement of technology, it is now possible to verify and ascertain whether any of the objectionable factors in Section 4 exists, within a short span of time.

DSG Advocate S Manu however submitted before the Court that the 30 days period prescribed under Section 5 has been incorporated to provide an opportunity to raise objections against the proposed solemnisation and that the statutory provision has been in force for more than half a century and cannot, therefore, be overlooked for granting the interim relief. To substantiate his contention DSG relied on Apex Court in Health for Millions v Union of India and others and the High Court decision in Ajmal Ashraf M.and another v State of Kerala and another.

Government Pleader Advocate S Appu also raised similar contentions as that of DSG. He contended that in the Scheme of the Special Marriage Act, the Marriage Officer is bound to conduct an enquiry when objection as to the proposal for solemnisation of marriage is found to be of substance. Any person aggrieved by the refusal to solemnise marriage after such enquiry can prefer an appeal and these statutory provisions cannot be watered down. The Government Pleader relied on the Apex Court decision in Bhaurao Shankar Lokhande and another v. The State of Maharashtra and another to substantiate his contentions. 

The Court after considering the contentions raised opined that the matter requires detailed consideration. However, the Court sided with the contention of DSG that grant of an interim order will have the effect of stay of operation of the provision.

This court cannot also ignore the Division Bench and Single Bench decisions holding the time stipulated in Section 5 to be mandatory, reasoned the Court while declining the prayer for interim relief.

The matter has been posted for after a month. 

Case Title: Bijy Paul v. The Marriage Officer and Ors.

Citation: 2023 LiveLaw (Ker) 49

Click Here To Read/Download The Order